Wednesday, March 29, 2006, 3/29/2006 11:55:00 AM

Burden of Establishing Trade Secrets in Moving to Quash a Subpoena

Subpoenas served pursuant to Rule 45 of the Federal Rules of Civil Procedure often turn the subpoena recipients cranky. Simply put, responding to subpoenas duces tecum and producing responsive documents is a pain in the ass. So the rules permit the responding party to object via a motion to quash the subpoena. When you make a motion to quash, you've got to advise the Court why you shouldn't have to produce the requested documents.

Advanced Tenant Services thought their former employees' subpoenas in the case of Falicia v. Advanced Tenant Services, Inc., 2006 WL 752936 (D.D.C. 2006) was a pain in the ass. Apparently the former employees won an "unpaid wages" claim against Advanced Tenant Services. Then they didn't get paid. So they wanted to obtain evidence from Advanced Tenant Services concerning their bank accounts and status of their business. It was this second inquiry that got Advanced Tenant Services hacked off. It claimed that their former employees were asking for documents that constituted their "trade secrets."

The Court correctly stated the rule for motions to quash - Advanced Tenant Services had the duty of showing that the information and documents sought were "trade secret" protected. All Advanced Tenant Services argued, though, that this stuff was really important to them. The Court noted that Advanced Tenant Services had failed to show how release of the information and documents would "harm their ability to remain competitive." That's the standard. That's what you need to show to have the Court push the "quash" button.

It's not enough to allege a "trade secret" - you have to prove it. This is the case even when you are getting jammed up by some former employees who stuck it to you for a few hundred thousand dollars in a lawsuit.